In a 3-0 decision, the U.S. Court of Appeals for the Ninth Circuit ruled that Facebook users in Illinois can move forward with a class-action lawsuit challenging the company’s use of facial recognition technology. Facebook had argued that the court should not let the plaintiffs proceed on a class basis with claims that it violated the Illinois Biometric Information Privacy Act (often referred to a “BIPA”). The Ninth Circuit’s ruling in Patel v. Facebook affirmed the District Court’s decision to certify a class of Illinois Facebook users.

The BIPA is intended to protect the biometric privacy of Illinois citizens by imposing restrictions on the collection and storage of certain biometric information by private companies. One of the protections afforded by the law is the requirement that a company must obtain an individual’s written consent before collecting and storing any such biometric information.

The case stems from a class action complaint filed by three Illinois Facebook users on behalf of all Illinois Facebook users accusing the social media company of unlawfully gathering and storing its users’ biometric information, including through the use of facial recognition technology, without consent. Specifically, the suit targets a feature Facebook launched in 2010 called “Tag Suggestions” which uses facial recognition technology to build a “face template” of an individual from pictures uploaded to the site. The software builds these face templates by analyzing an individual’s face in uploaded photos and measuring various geometric data points on an individual’s face such as the distance between eyes, nose, and ears. Users are able to opt-out of the feature, and Facebook argued that it only builds face templates of Facebook users who have not opted-out and have the feature turned on.

Although acknowledging the collection and storage of certain biometric information, Facebook argued that the users could not pursue claims for that conduct because Illinois Facebook users had not suffered a concrete injury. In rejecting this argument, the Ninth Circuit noted that intangible injuries can still be “concrete.” The Court concluded that “the development of a face template using facial-recognition technology without consent (as alleged in this case) invades an individual’s private affairs and concrete interests.” This, the Court explained, satisfied Article III’s concrete injury-in-fact requirement.

Facebook also sought to defeat class certification by arguing that its collection activities occurred outside of Illinois, and consequently outside of the BIPA’s purview. Facebook pointed to the fact that its headquarters were located in California and none of its nine data centers where face template data is analyzed and stored are located in Illinois. The Court disagreed, pointing to the legislative findings accompanying the law. Given these findings, the Court concluded that “it is reasonable to infer that the General Assembly contemplated BIPA’s application to individuals who are located in Illinois, even if some relevant activities occur outside the state.”

“This decision is a strong recognition of the dangers of unfettered use of face surveillance technology,” American Civil Liberties Union attorney Nathan Freed Wessler said in a news release. “The capability to instantaneously identify and track people based on their faces raises the chilling potential for privacy violations at an unprecedented scale.”

You can read the Ninth Circuit’s full opinion here.

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